Liberty vs Property: Slavery and the Constitution

The slave deck of the bark "Wildfire"The slave deck of the bark "Wildfire." (Photo: NYPL Digital Collections)
From the Editors…

There is currently a dust-up in political and historical forums over whether or not the Constitution sanctioned slavery or was an anti-slavery document. It is heated, and personal, and must, to many people, seem arcane. Who really cares, today, whether or not the Founding Fathers technically saw the nation as one based on slavery, when the reality was that the Constitution permitted the institution? Slavery existed before the American Revolution, it expanded afterward, and Americans had to fight a four-year war that cost more than $5 billion and 600,000 lives to end it.

So why does this issue matter so much?

It is really a fight about politics, and the nature of modern-day America.

Princeton professor Sean Wilentz launched the fight with an op-ed in the New York Times on September 16 shortly after Bernie Sanders said that the United States was “created…on racist principles.” Wilentz, a long-time Clinton supporter, vehemently disagreed. He insisted that the Constitution, which established the nation, was anti-slavery because it kept slavery a local, rather than a national, institution.

The larger question at stake in this argument is about whether or not America needs to address a history of inequality that is knit into the fabric of our society, or whether the problems we see today are largely policy issues that are not part of the nation’s fundamental make-up. This translates to politics because Sanders has been a more vocal supporter of the Black Lives Matter movement than Hillary Clinton has been. At a more general level, though, it is a fight about how to incorporate new voices into a discussion about America’s future.

We’re History believes the best way to address these questions is by looking at what, exactly, happened in the past. Today Professor Jonathan M. Bryant from Georgia Southern University explains how American courts used the Constitution’s protection of property to protect slavery.

A significant debate has recently erupted in American politics and the press over whether the authors of the Constitution intended for the new government to protect slavery or to oppose it. Historians are now stepping in to examine what really happened during and after the Constitutional debates. But whatever the intent of the Constitution’s authors, the answer will not be found in the original document or discussions of it. Court decisions, legislation, and social change all caused the Constitution to develop over time. During the years before the Civil War, constitutional law increasingly supported the institution of slavery. This happened not because the Constitution was pro-slavery per se, but because it was pro-property. A little known Supreme Court case, The Antelope, illustrated this process as the justices tried to untangle the status of a “cargo” of Africans captured at sea by an American ship a decade after the United States had outlawed the slave trade.

In 1819, an American privateer captured the Antelope, a Spanish slaver from Cuba off the coast of Africa. There, sailors loaded the privateer, called the Arraganta, and the slave ship Antelope with 331 captives they had taken from both Spanish and Portuguese vessels. Intending to sell the captives as slaves, the commanders of the two ships set out across the Atlantic. The Arraganta wrecked on the coast of Brazil, but the Antelope continued on until June 1820, when a United States Revenue Cutter captured it off the coast of Florida. The cutter’s crew found 281 living captives aboard the Antelope. Since January 1808, the international slave trade had been illegal under American law, so the Antelope’s commanders were potentially criminals. Officers brought the ship into Savannah where they threw the slave traders in prison and the U.S. Marshal held the captives pending judicial determinations of their fate.

In Savannah, the Vice-Consuls of Spain and Portugal filed claims to the surviving 258 captives, who were worth a fortune if the courts determined they were slaves. The Revenue Cutter’s captain filed a claim for a share of the monetary value of the enslaved captives. He asked for “salvage,” as it was known, a type of reward for saving the ship and “cargo.” Even the privateer who had commanded the captured Antelope filed a claim. There was good money in this business, and Savannah had benefited from the capture of illegal slave ships before.

Then, to everyone’s surprise, United States Attorney Richard W. Habersham entered the case, arguing that the captives were free human beings who should be returned to Africa. An eight year legal struggle followed, a struggle that included three trips to the United States Supreme Court. Meanwhile, the captives worked as slaves in Savannah homes and on local plantations, surely following the legal struggle for their freedom.

In 1825, the case first reached the Supreme Court. Francis Scott Key, at this time better known as a leading attorney rather than as the author of the Star Spangled Banner, and Attorney General William Wirt argued for the captives’ freedom. Key claimed the captives had a natural right to liberty. “By the law of nature, all men are free,” he insisted. If a cargo of white men were cast upon our shores, Key asked, would we assume they were slaves? How then was a cargo of Africans any different? Both lawyers asserted that under United States law, under international law, and by natural law incorporated in the Constitution, the captives were free and should be returned to Africa.

Their opponents, John M. Berrien and Charles J. Ingersoll, asked the Court to consider the implications of Key and Wirt’s arguments. Ingersoll, a former and future U.S. congressman, argued that international law permitted the slave trade. John M. Berrien went further. A slave-owning Senator from Georgia, Berrien argued that if Key was right about the law of nature, then the nation itself would collapse. Slavery, he said, “is protected by that constitution, forms a basis for your representatives, is infused into your laws, and mingles itself with all the sources of authority…Paradoxical as it may appear, they [slaves] constitute the very bond of your union. The shield of your constitution protects them from your touch.” Arguments continued before the Court for five days.

Chief Justice John Marshall wrote the Court’s opinion. Explaining that this was a case in which “the sacred rights of liberty and of property come in conflict with each other,” Marshall suggested he had no choice in his decision. “This Court must not yield to feelings which might seduce it from the path of duty,” he said, “and must obey the mandate of the law.” At first, it seemed that the Court might side with Key and Wirt on behalf of the government. Marshall did not take up Berrien’s argument that the Constitution specifically protected slavery, and he further admitted that the slave trade and perhaps even slavery itself was contrary to the law of nature. But that was as much ground as the Court conceded to the idea of freedom for the captives. Marshall ruled that positive law, that is, law enacted by human authority, eclipsed natural law and the rights of individuals. There was clear positive law controlling the fate of the captives in the Antelope case, and under it the captives were property. The legal condition of property superseded human rights. Key, and his argument for freedom, lost.

Historians, lawyers, and judges may argue over whether the Constitution was a pro-slavery document, but there is little question that it was a pro-property document. If positive law could strip human beings of their natural rights and render them property, then the Constitution would protect that property. Herein lay the dark implications of the Antelope decision. If people were made property by positive law, then slaveholders could expect the federal government and the Constitution to protect that property. Congress, with the Fugitive Slave Act of 1850, codified this understanding of slaveholders’ property rights. Then, the Supreme Court in the 1857 Dred Scott decision fully embraced slavery as a national institution.

Through legislation and the courts, by 1857 slavery was accepted as part of the Constitution by both the Supreme Court and the federal Congress. The changing Constitution produced conflict, especially over its meaning for the western Territories, conflict that proved politically impossible to resolve. War erupted, but war alone was not enough to remove slavery from the nation’s organic law. Only an amendment to the Constitution forbidding slavery could do so. This, by 1864, both Congress and Abraham Lincoln fully understood.

See all of the pieces in our series: Slavery and the Constitution.

About the Author

Jonathan Bryant

Jonathan M. Bryant writes about the nineteenth-century American South and American legal history. He is the author of How Curious a Land: Conflict and Change in Greene County Georgia, 1850-1885 and Dark Places of the Earth: The Voyage of the Slave Ship Antelope. He teaches at Georgia Southern University.

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  1. Great piece. I’d love to learn more about the Supreme Court’s ruling here, especially with respect to the “positive law” argument. Did it depend on an assertion that the *national* government had positive law enforcing slavery, since the Antelope was interdicted on the high seas? Or did it rely on the positive law of a specific state?

    1. Good question. Actually, the positive law Marshall relied upon in this case was that of Spain and Portugal. Had he relied upon US positive law, the 1819 Slave Trade Act would have required the freedom of the captives and their return to Africa. So, another lesson from Mr. Marshall’s decision that I didn’t have room for in the blog – choose your positive law carefully. (That’s a bit tongue in cheek, but it is a very complicated story.)

  2. Hi Jon–Great piece, summarizing the case. One small question–how was there a US privateer operating in 1819? Whose letters of marque did it carry, and on what basis?

  3. Ed, the privateer Columbia originally had a commission from Admiral Luis Brión of Venezuela, but after she sailed from Baltimore, the Captain pulled out a commission from Jose Artigas of the Banda Oriental. This was a revolutionary predecessor to Uruguay. Venezuela was at war just with Spain, the Banda Oriental was at war with Spain, Portugal, Brazil, and Buenos Aries, so the latter offered a privateer more potential victims. John Smith, captured commanding the Antelope, was a prize master from the privateer, whose name with the new commission was changed to the Arraganta. Smith was put on trial as a pirate, but acquitted in a criminal trial. In the Admiralty case, however, the same court ruled that he was a pirate.

  4. Such a crazy, convoluted, tragic case. Arguably the most indefensible aspect of it stemmed from the mixing of a shipload of illegally-enslaved Africans (free) with “legally” enslaved persons. Since the Court concluded that it would be impossible to determine who was what, it assigned each individual to slavery or freedom by lot: “No evidence was offered to show which of the Africans were taken from the American vessel and which from the Spanish and Portuguese, and the court below decreed that, as about one-third of them died, the loss should be averaged among these three different classes, and that sixteen should be designated by lot from the whole number and delivered over to the Marshal according to the law of the United States as being the fair proportion of the twenty-five proved to have been taken from an American vessel.” (The Antelope, 23 U.S. 10 Wheat. 66 66 (1825), syllabus.)

    I think this case haunted Secretary of State J.Q. Adams, and his revulsion against it can be seen in his defense of the Amistad captives in 1839.

  5. I agree. John Quincy Adams showed remarkable zeal in the Amistad case, and fully a third of his argument involved the Antelope case, perhaps representing an attempt to redeem himself for doing nothing to help the Antelope captives.
    As for the lottery among the captives, Justice Johnson had ordered a second lottery to divide the Spanish and Portuguese slaves. US Attorney Habersham fought this, saying that the claimants must individually identify specific captives, suggesting they needed documentation to support this (there was no documentation). This resulted in a second trip to the Supreme Court in 1826. A third trip followed in 1827 as Habersham protested that the designation of the captives carried after the second case was insufficient to condemn individuals to a lifetime of slavery. Habersham was one stubborn man. Of course, the captives lost.

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